Pesec v Consolidated Builders Ltd (No 7) - [2022] ACTSC 244

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Pesec v Consolidated Builders Ltd (No 7)
Citation:	[2022] ACTSC 244
Hearing Date:	9 August 2022
DecisionDate:	9 September 2022
Before:	McWilliam AJ
Decision:	In proceeding SC 179 of 2020 1. A gross sum costs order is made in the sum of $384,000. 2. Each party is to bear their own costs of the application filed 10 May 2022. In proceeding CA 18 of 2021 1. In proceeding CA 18 of 2021, a gross sum costs order is made in the sum of $66,000. 2. Each party is to bear their own costs of the application treated as filed on 10 May 2022.
Catchwords:	PRACTICE AND PROCEDURE – COSTS – Gross sum costs order – application for costs to be fixed where plaintiff previously ordered to pay defendant’s costs – where formal assessment of the defendant’s costs would be protracted and expensive – whether defendant incurred costs in anticipation of proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 3 Corporations Act 2001 (Cth) ss 237, 239 Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) rr 1700, 1720, Supreme Court Act 1933 (ACT) s 37J Uniform Civil Procedure Rules 1999 (Qld) r 679
Cases Cited:	Andy Vuong Duc Pham v Enterprise ICT Pty Ltd [2020] NSWSC 1089 Blake v Norris (1990) 20 NSWLR 300 Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School [2014] ACTSC 326 Coshott v Parker (No 3) [2015] NSWSC 1195 Guha v Guha [2020] NSWSC 1337 Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640 Idoport Pty Limited v National Australia Bank Limited and Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 Kostov v Zhang (No 2) [2016] NSWCA 279 Mann v Brooke [2000] ACTSC 53 Pesec v Consolidated Builders Ltd [2021] ACTCA 25 Pesec v Consolidated Builders Ltd [2019] ACTSC 142 Pesec v Consolidated Builders Ltd (No 2) [2019] ACTSC 157 Pesec v Consolidated Builders Ltd (No 3) [2021] ACTSC 105 Pesec v Consolidated Builders Ltd (No 4) [2021] ACTSC 188 Pesec v Consolidated Builders Ltd (No 5) [2021] ACTSC 225 Pesec v Consolidated Builders Ltd (No 6) [2021] ACTSC 250 Polleycutt v Taylor [2020] ACTSC 158 Polleycutt v Taylor (No 2) [2020] ACTSC 321 Potter v Dickenson (1905) 2 CLR 668 Re Aquaqueen International Pty Ltd [2015] NSWSC 500 Re Palladium Consulting Pty Ltd [2013] NSWSC 92 Simone Starr-Diamond v Talus Diamond (No 4) [2013] NSWSC 811
Parties:	Anthony Pesec (Plaintiff/Respondent) Consolidated Builders Limited (Defendant/Applicant)
Representation:	Counsel M R Pesman SC (Plaintiff/Respondent) I Ahmed (Defendant/Applicant)
Solicitors Chamberlains (Plaintiff/Respondent) Clayton Utz (Defendant/Applicant)
File Numbers:	SC 179 of 2020; AC 18 of 2021

McWilliam AJ

It need hardly be said that litigation can be expensive. Working out the costs after a dispute is resolved can be a further time consuming and complex task, itself adding to a litigation money…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] ACTSC 244
Decision Date: 9 September 2022

CaseChat Overview and Summary

The matter before the Court was an application for costs in the proceedings between Pesec and Consolidated Builders Ltd. The plaintiff, Pesec, had previously been ordered to pay the defendant’s costs. The defendant sought a gross sum costs order to address the costs incurred in the proceedings, arguing that a formal assessment of their costs would be protracted and expensive. The defendant also claimed to have incurred costs in anticipation of the proceedings.

The Court needed to determine whether a gross sum costs order was appropriate, considering the circumstances of the case and the costs incurred by the defendant. The Court examined the principles governing costs in the Supreme Court and the factors relevant to determining the amount of a gross sum costs order. The Court also considered the defendant's claim that they had incurred costs in anticipation of the proceedings.

The Court found that a gross sum costs order was appropriate in this case. The Court noted that a formal assessment of the defendant's costs would be protracted and expensive, and that the defendant had incurred significant costs in anticipation of the proceedings. The Court also considered the overall amount of the defendant's costs and the circumstances of the case in determining the appropriate amount of the gross sum costs order. The Court made a gross sum costs order in the sum of $384,000 in proceeding SC 179 of 2020 and a gross sum costs order in the sum of $66,000 in proceeding CA 18 of 2021. Each party was ordered to bear their own costs of the application.

Orders

Orders of the court

In proceeding SC 179 of 2020

1. A gross sum costs order is made in the sum of $384,000.

2. Each party is to bear their own costs of the application filed 10 May 2022.

In proceeding CA 18 of 2021

1. In proceeding CA 18 of 2021, a gross sum costs order is made in the sum of $66,000.

2. Each party is to bear their own costs of the application treated as filed on 10 May 2022.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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